By Katherine J. Hart

The most recent CEQA/land use decision comes from the Court of Appeal, Third Appellate District and provides important guidance on issues of exhaustion of administrative remedies, CEQA mitigation measures, and general plan interpretation. In California Native Plant Society v. City of Rancho Cordova and Jaeger Road 530, LLC, filed March 24, 2009, the Court reviewed an Environmental Impact Report (“EIR”) for a project named The Preserve at Sunridge (“Preserve”). The Preserve involves the development of approximately 530 acres in Rancho Cordova, California ("City") as single and multi-family housing, commercial and office uses, a neighborhood park, an elementary school, detention basins, an open space and wetland preserve, bikeways and pedestrian and drainage corridors. The project lies within the Sunrise Douglas Community Plan, subject of challenge in the Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412. (See “Vineyardblog article.)

The Court of Appeal addressed the following issues presented by the California Native Plant Society (“Society”).

I.              Challenges to Offsite Mitigation Measures Not Exhausted

The Society asserted that four of its arguments pertaining to offsite mitigation were properly brought before the City for consideration. In reviewing the Society’s contentions, the Court of Appeal disagreed noting that that the Society’s arguments had not properly been exhausted and held that an agency must be “fairly apprised” of the issue being raised by opposition during the CEQA process to provide the jurisdiction with an opportunity to address the issues prior to project approval.

II.             Deferral of Mitigation for Loss of Vernal Pools and Wetlands

The Society also alleged that the City failed to describe where offsite mitigation would occur and failed to analyze or disclose the impacts of that mitigation, thereby unlawfully deferring development and adoption of mitigation measures until after project approval. Despite the fact that the City did not identify any specific proposed mitigation site for the vernal pool/wetland impacts, the Court of Appeal found that the City did not improperly defer a determination of whether the project would have a significant impact on the vernal pools and seasonal wetlands or defer identification of the measures intended to mitigate those impacts. The Court of Appeal held that “the City did not have to identify exactly where any offsite mitigation site would be located” and further that “the agency was entitled to rely on the results of a future study to fix the exact details of the implementation of the mitigation measures the agency identified in the EIR.” The Court reasoned the City identified a mitigation measure (e.g., the study) and committed to mitigating the impact (e.g., loss of vernal pools/seasonal wetlands). The Court dismissed the Society’s arguments that the holding in the Vineyard case applied to the case before it on the grounds that the Society failed to show how the principles of deferred mitigation as applied to water supply (the issue before the Court in Vineyard) related to deferral of offsite mitigation for vernal pools and wetlands (the issue before the Court in this case).

III.           Sufficiency of the Evidence Regarding Proposed Mitigation for Vernal Pools/Wetlands

The Society contended that the record did not support the City’s finding that the proposed mitigation on vernal pools and wetlands would reduce the project’s adverse environmental impacts to less than significant levels because the USFWS, CDFD, USACE, and USEPA did not believe the mitigation was sufficient to reduce the impacts to a less than significant level. The Court’s opinion reiterated the rule that the party challenging an EIR has the burden to show there is insufficient evidence. Thus, the Society was required to show there was no evidence to support the City’s finding, which it could not do. Significantly, the Court said, “Pointing to evidence of a disagreement with other agencies is not enough to carry the burden of showing a lack of substantial evidence to support the City’s finding.”

IV.          Challenge to Water Supply Analysis Not Exhausted

The Society further claimed that the project EIR relied on and incorporated the discussion and analysis of the long-term water supply impacts from the Sunrise Douglas Community Plan EIR, which was invalidated by the Supreme Court in the Vineyard case. Here, the Court first found that just because an administrative record contains a copy of a certain document which would constitute substantial evidence of a certain allegation, does not mean that the legal claim was necessarily properly exhausted at the administrative level. Next, the Court found that the project EIR did not have to be invalidated merely because it incorporated by reference material from previous EIR, which was later found to be invalid. Interestingly, while not specifically noted, although clearly implied in the Court’s opinion, is the fact that the project EIR in this case did not tier from the Community Plan EIR in any manner. 

V.            Amendment of Mitigation Measures Post-Project Approval Not Exhausted

The Preserve project involved an amendment to two mitigation measures contained in the Sunrise Douglas Community Plan relating to wetland delineations and acquisition of permits. Specifically, the amendment to the two mitigation measures would allow required actions to be triggered upon approval of any improvement plans or grading permits, as opposed to prior to approval of other earlier entitlements such as tentative subdivision maps or development plans. The Society argued such amendments violated CEQA. The Court found that the Society had failed to exhaust its administrative remedies on this issue as well as on the grounds that the USEPA and USFWS comments upon which the Society relied did not specifically identify the mitigation measures being challenged.

VI.           General Plan Consistency

The Court of Appeal examined a number of challenges to the project regarding consistency with the City’s General Plan. In particular, the Court found as follows:

  • The Society failed to meet its burden of showing that, based on all the evidence in the record, the City was unreasonable in determining the 90-acre offsite preserve was consistent with its General Plan. The Court reasoned that evidence other agencies thought mitigation was least preferable did not constitute evidence of unreasonableness.
  • The Society failed to meet its burden of showing that, based on all the evidence in the record, the City failed to consult with the USFWS. Soliciting and considering USFWS comments constituted sufficient “consultation.”
  • The Society failed to meet its burden of showing that, based on all the evidence in the Record, the City failed to properly mitigate for loss of habitat and species. Evidence that other agencies didn’t agree proposed mitigation was best didn’t constitute evidence that mitigation was inconsistent with the City’s General Plan, and further, did not show the City could not have reasonably determined the mitigation measure would prevent the project from impacting the viability of the fairy shrimp.
  • The Society did meet its burden of showing that the City failed to “coordinate” with USFWS.  Saving the real kicker for last, the Court held that “coordination” did not equate to “consultation” under the City’s General Plan. The Court reasoned that if the City had meant only coordination with federal agencies was required, its General Plan would say just that. Coordination and consultation are two separate and distinct actions.

Lessons Learned

1.         To all the cities and counties in California conducting general plan updates or considering general plan amendments: Courts grant agencies extensive deference in interpreting local plans, codes and policies most of the time, but not all of the time. In this case, the City’s general plan contained both the words “consultation” and “coordination” regarding wetlands, which have different meanings according to the Court. Special care should be taken to ensure the terms used in general plans, codes and policies are consistent, and if they are not, that the intent behind key words used is explained. As a practice tip, never use the very “coordinate” unless you really mean it.

2.         To project proponents:  Strict attention to the language contained in agency documents is required. If it appears the relevant language of an agency document requires more extensive duties or obligations, it may be interpreted that way and failure to comply could be problematic, as in the case here where the project proponent failed to “coordinate” with agencies on wetland permitting issues.

3.         To project opponents: Be forewarned, the Third District Court of Appeals has now strictly held that there must be exhaustion as to the specific issue challenged. General and unrelated citations to near-issues in the record will not suffice to exhaust the issue – it must be assertively identified and presented to the reviewing agency prior to project approval.


A Petition for Review or Request for Depublication of the case was filed with the Supreme Court by the Center for Biological Diversity on May 18, 2009. In its Petition, the Center provided the following ground for supporting review or depublication: 1) to prevent the erosion of public participation process in CEQA; and 2) to retain the importance of information disclosures in the CEQA process for analysis and mitigation of significant impacts.

Counsel for the Real Party in Interest and the City filed an Answer to Petition outlining the reasons the Petition should be denied and requesting such action. Namely, the City and Jaeger argue that 1) the Court of Appeal’s opinion is consistent with settled law regarding exhaustion of administrative remedies; 2) incorporation by reference of portions of the Community Plan EIR was not improper and does not make the project EIR inadequate under CEQA; 3) the adopted wetland mitigation measures satisfy CEQA requirements; and 4) the City was entitled to rely upon its own experts in the environmental review process.

Katherine J. Hart is a senior associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.